UNESCO AND UNIDROIT - COOPERATION IN THE FIGHT AGAINST by fyh14669

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									                                                                                                   CLT-2005/Conf/803/2
                                                                                                     Paris, 16 June 2005


    UNESCO AND UNIDROIT - COOPERATION IN THE FIGHT AGAINST ILLICIT TRAFFIC
                                  IN CULTURAL PROPERTY
         Conference Celebrating the 10th Anniversary of the 1995 UNIDROIT Convention
                        on Stolen or Illegally Exported Cultural Objects

                                    24 June 2005, UNESCO Headquarters, Paris


                                             UNESCO Information Note


  Complementarity between, and functioning of the 1970 UNESCO Convention on the Means of
Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property
       and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects



    International trafficking in cultural property is an increasingly universal problem, affecting, to
various extents, even countries traditionally seen as “importing” countries and necessitating
international regulations (binding1 and non-binding 2). Consequently, UNESCO recommends its
Member States to consider for ratification, possibly at the same time, both the UNESCO (1970) and
UNIDROIT (1995) Conventions.
    At present (1 June 2005) 107 States are Party to the 1970 UNESCO Convention 3, and 25 States are
Party to the 1995 UNIDROIT Convention4.
    To facilitate consideration of these two Conventions, their complementarities and functioning are
briefly illustrated as follows :


                                                 I)       Policy Aspects

      1) Philosophy :

         Both Conventions fight illicit trade in art and cultural property 5, an increasingly universal
         problem, while leaving prosperous the licit trade therein.

             a. They
                      i. are not retroactive - they apply between States Parties after their entry into force;
                     ii. cover only objects of illicit provenance (theft and/or illicit export);
             b. It is also in the interest of the market and trade to distinguish carefully licit from illicit
                trade of cultural property.



1
  As Conventions and Protocols vis-à-vis their respective States Parties. (See www.unesco.org.culture/laws/illicit)
2
  UNESCO also elaborated the International Code of Ethics for Dealers in Cultural Property (available under
http://portal.unesco.org/culture/en/ev.php-URL_ID=13095&URL_DO=DO_TOPIC&URL_SECTION=201.html)
3
  Up-dated list available under : http://erc.unesco.org/cp/convention.asp?KO=13039&language=E
4
  Up-dated list available under : http://www.unidroit.org/english/implement/i-main.htm
5
  See UNESCO Convention (Art.1) and UNIDROIT Convention (Art. 2 and its Annex)
                                                              2

    2) Consideration for ratification :

         Both Conventions should ideally be considered for ratification and for those States that have not
         yet joined either, this should be done at the same time (for instance, the Governments of New
         Zealand and Afghanistan are currently undertaking this), to optimize:

             a. the political momentum achievable at national level in the fight against illicit traffic;

             b. their legal and practical implementation at national level.

    3) Protected interests :

             a. Any victim of theft : restitution of stolen objects under the 1970 UNESCO and 1995
                UNIDROIT Conventions certainly protect the dispossessed owner’s interests, be it an
                individual, legal entity or State;

             b. Any State Party suffering from illicit export : The 1995 UNIDROIT Convention also
                protects the interest of States Parties that lose cultural property due to their illicit export,
                which often turns into definitive export (and definitive loss of the object for the country
                of origin and the local accessibility to scientists and the public) inter alia if the object is
                bought abroad or the exporter fears seizure in case of re-import under the exporting
                country legislation;

             c. This is not to say that the 1995 UNIDROIT Convention merely assimilates theft and
                illicit export; indeed the two regimes are distinct and in the latter different conditions are
                to be met 6.


    4) Legal nature:

             As they are uniform law international instruments 7, both Conventions:

             a. prevent, within their scope of application and for private law issues (such as ownership),
                some common features of litigation under private international law:
                    i. the complications and time-consuming exercises of determining the (foreign)
                       applicable law finding out its content and interpreting it;
                   ii. the uncertainties in the outcome of the claim, depending on the applicable law;

                  knowledge of the law (generally of the country of origin) remains common practice for
                  criminal law (such as definition of stolen property) and public law (such as definition of
                  illicit export) issues;

             b. make more predictable in their outcome, less expensive and less time-consuming
                litigation8 or requests for return or restitution under the Conventions as compared to cases
                where the Conventions do not apply.




6
  See in particular Art.5, 3.
7
  Differently from private international law conventions (on the applicable law).
8
  This technical term (carrying on a lawsuit) does not necessarily reflect requests addressed through the diplomatic channel
under the UNESCO Convention (Art.7, b) ii).
                                                                3

                                                   II) Operational Aspects


     1) Purposes and Domains:

             a. The 1970 UNESCO Convention covers both :

                       i. prevention of illicit traffic (setting-up proper national services9, adopting legal
                          and administrative measures10, introducing an appropriate export certificate11,
                          obliging antique dealers to maintain a register recording the origin12, public
                          awareness arising through educational means13).

                       ii. recovery phase :
                              1. restitution of stolen inventoried cultural objects14;
                              2. if consistent with the laws of the State Party concerned, admitting actions
                                 for recovery of stolen objects, and cooperating in facilitating the
                                 restitution of illicitly exported objects 15.

             b. Differently, the 1995 UNIDROIT Convention arriving 25 years after 1970 and assuming
                better national prevention schemes16, focuses on the recovery phase and sets uniform
                rules and conditions for

                        i. restitution claims on stolen cultural objects17;
                       ii. return claims on illicitly exported cultural objects18.

     2) Scope (ratione materiae)

         Both Conventions share the same definition (relevant importance19 and categories20) of cultural
         property.

9
  Art.5.
10
   Articles 6, b); 7; 8 etc.
11
   Art.6, a.
12
   Art.10, a).
13
   Art.10.
14
   Art.7, b) ii.
15
   Art.13, b) and c) ;
16
   This assumption is based on the greater awareness of illicit traffic of cultural objects at the time of the adoption of the
UNIDROIT Convention in comparison to 25 years before. However, practice worldwide shows a variety of national
prevention schemes and degrees of tools, resources and therefore effectiveness.
17
   Chapter II (Articles 3-4).
18
   Chapter III (Articles 5-7).
19
   Property or object “which, on religious or secular grounds, is specifically designated by each State as being of importance
for archaeology, prehistory, history, literature, art or science”. However, the UNIDROIT Convention has not retained the
formula “specifically designated by each State” in Article 1, to facilitate a broader recovery of objects.
20
   (a) Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of palaeontological interest;
(b) property relating to history, including the history of science and technology and military and social history, to the life of
national leaders, thinkers, scientists and artist and to events of national importance;
(c) products of archaeological excavations (including regular and clandestine)
or of archaeological discoveries ;
(d) elements of artistic or historical monuments or archaeological sites which have been dismembered;
(e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals;
(f) objects of ethnological interest;
(g) property of artistic interest, such as:
(i) pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial
designs and manu-factured articles decorated by hand);
                                                                4

              a. This sets a uniform understanding of this notion and practically facilitates the work of
                 administrations and professionals in all States Parties;

              b. The definition and categories adopted under both Conventions have proved broad enough
                 to set a common language worldwide, and operationally are applied to the specific case
                 not differently from what happens for most other definitions under domestic legislations.

    3) How may one claim restitution ?

              a. The 1970 UNESCO Convention favours the international (inter-state) cooperation
                 approach, and operates primarily through the diplomatic channel21, as well as courts (if
                 consistent with the laws of the State Party concerned)22;

              b. The 1995 UNIDROIT Convention has operational private law provisions, and restitution
                 requests are brought before the court or other competent authority of the State Party
                 where the cultural object is located23. The parties may also agree to submit the dispute to
                 another court or to arbitration24.

    4) Who may claim restitution ?

              a. Under the 1970 UNESCO Convention :

                        i. primarily a State Party through diplomatic channels25;
                       ii. an individual or a legal entity when admitted by the law of the State Party26;

              b. Under the 1995 UNIDROIT Convention :

                  i.      A State Party or an individual or a legal entity owner in case of stolen cultural
                          objects27;
                 ii.      A State Party in case of illicitly exported cultural objects28.

    5) Within what time limit may one claim restitution ?

              a. The 1970 UNESCO Convention does not set a time limit :




(ii) original works of statuary art and sculpture in any material;
(iii) original engravings, prints and lithographs ;
(iv) original artistic assemblages and montages in any material;
(h) rare manuscripts and incunabula, old books, documents and publications of special interest (historical, artistic, scientific,
literary, etc.) singly or in collections ;
(i) postage, revenue and similar stamps, singly or in collections;
(j) archives, including sound, photographic and cinematographic archives;
(k) articles of furniture more than one hundred years old and old musical instruments.
21
   Art.7, b), ii.
22
   Art.13, c).
23
   Art.8, 1.
24
   Art.8, 2.
25
   Art.7, b) ii. A different situation is considered under Art.13, d.
26
   Art.13, c).
27
   Chapter II (Articles 3-4).
28
   Chapter III (Articles 5-7).
                                                               5
                          i.      this is not necessarily                                  required  for   requests
                                                                     29
                                  through the diplomatic channel          , the outcome of which may depend also on
                                  political circumstances;

                      ii.        in the different framework of ordinary actions for recovery of lost or stolen items
                                 admitted by States Parties consistently with their laws a time limit may exist
                                 under the relevant domestic law30.

              b. The 1995 UNIDROIT Convention has set clear time limits which strike a balance
                 between the needs of legal predictability and facilitating the recovery by the original
                 owner (case of theft) or interested state (case of illicit export)31.

     6) Consequences for the possessor if conditions for restitution under the Conventions are fulfilled :

              a. The 1970 UNESCO Convention: the requesting State Party shall pay “just compensation”
                 to an innocent purchaser or to a person who has valid title to that property 32.

              b. As the 1995 UNIDROIT Convention is a more recent and articulated instrument, it
                 contributes to preventing possible abuse with presumed good faith in (non-derivative)
                 acquisition of objects, and moralizing the art and cultural property market by setting
                 various rules:

                     i.           in case of stolen cultural property :

                               1. The possessor of a stolen cultural object required to return it is entitled, at the
                                  time of its restitution, to payment of fair and reasonable compensation
                                  provided that the he/she neither knew nor ought reasonably to have known that
                                  the object was stolen and can prove that he/she exercised due diligence when
                                  acquiring the object33.

                               2. In determining whether the possessor exercised due diligence, regard shall be
                                  had to all the circumstances of the acquisition, including the character of the
                                  parties, the price paid, whether the possessor consulted any reasonably
                                  accessible register of stolen cultural objects, and any other relevant information
                                  and documentation which it could reasonably have obtained, and whether the
                                  possessor consulted accessible agencies or took any other step that a reasonable
                                  person would have taken in the circumstances34.

                               3. In the broader picture one should also bear in mind that, with reference to
                                  compensation, the possessor35 and the claimant36 may benefit from other
                                  provisions.



29
   Art.7, b) ii.
30
   In the framework of Article 13.
31
   See Articles 3, (3-5), and 5 (5).
32
   Art.7, b) ii.
33
   Art.4, 1.
34
   Art.4, 4.
35
   Art.4, 2 : Without prejudice to the right of the possessor to compensation referred to in the preceding paragraph,
reasonable efforts shall be made to have the person who transferred the cultural object to the possessor, or any prior
transferor, pay the compensation where to do so would be consistent with the law of the State in which the claim is brought.
36
   Art.4, 3 : Payment of compensation to the possessor by the claimant, when this is required, shall be without prejudice to
the right of the claimant to recover it from any other person.
                                                               6




                   ii.        in case of illicitly exported objects :

                         1.   The possessor of a cultural object who acquired the object after it was illegally
                              exported shall be entitled, at the time of its return, to payment by the requesting
                              State of fair and reason compensation, provided that the possessor neither knew
                              nor ought reasonably to have known at the time of acquisition that the object had
                              been illegally exported37.

                         2.   In determining whether the possessor knew or ought reasonably to have known
                              that the cultural object had been illegally exported, regard shall be had to the
                              circumstances of the acquisition, including the absence of an export certificate
                              required under the law of the requesting State38.

                         3.   In the broader picture one should also bear in mind that :

                                         aa) The parties may agree to replace compensation39;
                                         ab) The requesting State covers the costs of returning the object
                                             without prejudice to the right to recover costs from any other
                                             person40;
                                         ac) The current possessor is not in a more favourable position than the
                                             former possessor41.

     7) Operation of these Conventions is facilitated by integrative international tools, such as :

              a. INTERPOL offers a database of stolen cultural objects42.

              b. UNESCO has established a national legislation database on the protection of cultural
                 heritage43.

              c. UNESCO and the World Customs Organization have elaborated a model export
                 certificate for cultural objects to be considered for adoption, in part or its entirety, by
                 Member States.




37
   Art.6, 1.
38
   Art.6, 2.
39
   Art. 6, 3. Instead of compensation, and in agreement with the requesting State, the possessor required to return the cultural
object to that State may decide:
(a) to retain ownership of the object; or
(b) to transfer ownership against payment or gratuitously to a person of its choice residing in the requesting State who
provides the necessary guarantees.
40
   Art.6, 4.
41
   Art.6, 5. The possessor shall not be in a more favourable position than the person from whom it acquired the cultural object
by inheritance or otherwise gratuitously.
42
   See http://www.interpol.int/
43
   See www.unesco.org/culture/natlaws

								
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